Yesterday, I guessed that the President would use the Commander-In-Chief Clause as the excuse for his cowardly and illegal unauthorized domestic spying on U.S. citizens. Today, Bush invoked that power in his radio address. Let me just elaborate on how this is not a legally coherent argument.

First, there's no textual reason to think that the framers intended the Commander-In-Chief Clause to be "elastic" in the sense that Congress's power to make "all laws necessary and proper" has been interpreted to be expansive and wide reaching. "All law necessary and proper" is, textually, an expansive grant...and the debate has always been about how expansive it really is. Compare this with the Commander-In-Chief clause: "The President shall be Commander in Chief of the Army and Navy of the United States, and of the militia of the several States, when called into the actual Service of the United States." This is a limited grant. Those who are oriented to original intent interpretations would probably go so far as to say the grant is limited to the framers' concept of what a Commander In Chief does and the nature of the Army and Navy at the time of ratification.

Furthermore, even the Elastic Clause does not give Congress the power to make laws in direct violation with express provisions of the Constitution. The Fourth Amendment would stop Congress from passing a law authorizing warrantless phone taps. (Remember that the uproar about the Partiot Act was really about the degree to which traditional search and seizure law can be altered in terrorism cases) How can the Commander-In-Chief clause be read to give the President more elastic power than the elastic clause?

Last, I said earlier that a true originalist would see the Commander-In-Chief clause as limited to framer's concepts of what a Commander In Chief does or what the Army was at the time of ratification. This is obviously untenable in our modern world. Congress' power to declare war has been sidestepped out of geopolitical necessity (by presidents using the Commander-In-Chief clause). HOWEVER, there are huge and absolutely essential differences between that use of the Commander-in-Chief power and what Bush is trying to do now. The distinction between homefront and foreign shores is absolutely central to the constitutional order under which our military has operated for centuries. The Presidents powers as Commander In Chief should have no domestic effects outside of the power to physically maintain the military and its bases. If indeed the President chooses to ground his wiretaps of citizens without warrants under the Commander-In-Chief clause, this is means he has incorporated the NSA into our Military and authorized it to act domestically. That is tantamount to a declaration of martial law. The military DOES NOT have any extraordinary powers domestically. If there is any elasticity in the Commander-in-Chief Clause, it is purely in the conduct of foreign wars.

Does all this mean that I think that using the NSA to spy on domestic actors accused of terrorist sympathies is categorically impossible? No, of course not. But, it has to be done legally. Our constitution is not a "tool of the weak" as Cheney likes to say. It is a powerful document that has always adapted to the times. These wiretaps could have been done legally. Expedited authorizations, obviously ex-parte and maybe even decided entirely within the executive branch, seem reasonable enough. But, there has to be a legal process under which these taps are authorized. And, even more centrally, this process would have had to have been authorized by Congress. What we have now is a completely extra-legal usurpation of Congressional power in direct violation to long-established and central individual rights. No amount of after the fact justifications by Bush or anyone else is going to change the damage they have done to the freedoms they so flippantly invoke when its in their interest to do so.

The damage this administration has done to freedom as we knew it is a flagrant insult all those heroes and patriots who sanctified our way of life with their own blood.